from the has-its-problems,-but-still-an-improvement dept

"Accountability" is a word often tossed around by government officials in an effort to appear trustworthy and genuine. However, this is seldom followed up by action. Everyone agrees it's a fine principle, but far too idealistic to apply to the realities of governing, apparently. Rep. Lynn Jenkins seems to both 1) believe the government needs more accountability and 2) be willing to do something about it.

On Wednesday, Jenkins introduced legislation that she says would expand the rights of Americans to record their conversations with federal employees. Under current law, people are only able to lawfully record certain in-person conversations with IRS officials.

But under Jenkins proposal, that law would be expanded to allow people to record both in-person and phone conversations with most agencies in the executive branch. It would also require these government officials to tell people they have the right to record these conversations.

Jenkins' bill would cover conversations with personnel from a large number of agencies that fall under the "executive agency" label, which would include agencies from the Dept. of Justice and Dept. of Defense, among others.

The specifications of the bill allow individuals to record what could be loosely termed "protective" recordings -- the sort of recording that would prevent "he said/agency said" discrepancies further down the road.

Any employee of an Executive agency who is conducting an in-person or a telephonic interview, audit, investigation, inspection, or other official in-person or telephonic interaction with an individual, relating to a possible or alleged violation of any Federal statute or regulation that could result in the imposition of a fine, forfeiture of property, civil monetary penalty, or criminal penalty against, or the collection of an unpaid tax, fine, or penalty from, such individual or a business owned or operated by such individual, shall allow such individual to make an audio recording of such in-person or telephonic interaction at the individual’s own expense and with the individual’s own equipment.

This would seem to cover conversations with such federal agencies as the ATF, DEA and the especially recording-shy FBI, the latter of which still prefers to use its own pen-and-paper accounts of "interviews." Unfortunately, even though these agencies (along with the DHS) fall under the "executive agency" banner, the bill's list of exceptions would seem to make almost every conversation with these agencies off limits.

(A) that is likely to include the discussion of classified material; (B) that is likely to include the discussion of information that, if released publicly, would endanger public safety; or (C) that, if released, would endanger an ongoing criminal investigation if such investigation is being conducted by a Federal law enforcement officer (as defined by section 2 of the Law Enforcement Congressional Badge of Bravery Act of 2008) who is employed by a Federal law enforcement agency.

The "endanger public safety" exception is nothing more than an out for any agency remotely concerned with "fighting terrorism." This pretty much allows the DHS to prevent recording of conversations, even if the subject matter would seem to be completely unrelated to terrorist activity. Furthermore, the wording allows ANY agency to decide what will or won't "endanger" the general public, with the likelihood being that most conversations carry that potential.

The FBI (along with the ATF, DEA and others) will be able to use exception (C) to prevent recordings, as almost all of these agencies' conversations will pertain to some sort of ongoing investigation.

Jenkin's bill may push accountability on some federal agencies, but the ones with the most worrying track records probably won't feel a thing. It would be extremely tough to sell this bill without the exceptions, but their inclusion severely undercuts the stated aim.

from the fair-use-lives dept

Last year, we wrote about one of the more ridiculous copyright claims we'd seen to date (which is saying quite a lot), in which the estate of author William Faulkner sued Sony Pictures over the Woody Allen movie Midnight in Paris. The issue? Owen Wilson's character, at one point, misquotes (with credit) a Faulkner quote. Here's how the estate itself described it in the lawsuit:

In describing his experiences, Pender speaks the following lines (the "Infringing Quote"): "The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

The Infringing Quote is taken from a passage in the William Faulkner book "Requiem for a Nun" ("the Book"), where it reads: "The past is never dead. It's not even past." ("the Original Quote").

Yes, they sued, and claimed that having that quote in the movie infringed on Faulkner's copyright. Thankfully, the court wasted little time disabusing the estate of its rather laughable view of copyright law, doing a fair use analysis, and making it clear that this use qualifies as fair use. At points, the judge is clearly flabbergasted that the Faulkner estate even brought such a ridiculous lawsuit:

The court is highly doubtful that any relevant markets have been harmed by the use in
Midnight. How Hollywood's flattering and artful use of literary allusion is a point of litigation,
not celebration, is beyond this court's comprehension. The court, in its appreciation for both
William Faulkner as well as the homage paid him in Woody Allen's film, is more likely to
suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any
effect at all.

Similarly, the court found it to be obviously transformative:

These factors coupled with the miniscule amount borrowed tip the scales in such heavy
favor of transformative use that it diminishes the significance of considerations such as
commercial use that would tip to the detriment of fair use. It is difficult to fathom that Sony
somehow sought some substantial commercial benefit by infringing on copyrighted material for
no more than eight seconds in a ninety minute film. Likewise, it is evident that this eight second
clip serves as a thematic catharsis or apex in plot to neither Requiem nor Midnight.

Unfortunately, there is one problematic aspect to the ruling. Sony asked for the case to be dismissed both because of fair use and because of de minimis use -- which is a separate legal doctrine, which suggests tiny snippets can be used without permission, having nothing to do with fair use. This has some importance, because of the (incorrect, in my opinion) argument made by some courts, that fair use is merely "a defense" to infringement, rather than a right. This makes little sense if you read the actual statute but it is how some courts have interpreted fair use.

Unfortunately, the court refuses to do an analysis on de minimis use separate from fair use -- suggesting that de minimis use only counts as a part of fair use. This is not how it's supposed to be. De minimis and fair use are two separate issues, but the court treats de minimis as a part of the fair use analysis:

Both parties have posited non-circuit authority for the doctrine of de minimis non curat
lex and its applicability to copyright infringement. The Supreme Court states that “the venerable
maxim de minimis non curat lex (“the law cares not for trifles”) is part of the established
background of legal principles against which all enactments are adopted, and which all
enactments (absent contrary indication) are deemed to accept.” ....

The parties agree that the doctrine is part of the initial inquiry of whether or not the use is
infringement in the first instance, as opposed to the fair use inquiry, which is an affirmative
defense. The Fifth Circuit recognizes the de minimis doctrine in the context of infringement
cases, but it has not specifically enunciated its proper place in the infringement analysis....

To conclude this preliminary discussion, the court considers both the substantial
similarity and de minimis analyses in this case to be fundamentally related, and wholly
encompassed within the fair use affirmative defense. Therefore, the court will utilize the fair use
factors in making a determination on the de minimis and substantial similarity issues. Moreover,
this circuit's precedent addressing the use of a de minimis analysis in copyright cases is largely
undeveloped, and the court is reluctant to address it, except within the context of Sony's
affirmative defense, fair use.

I can understand why the court chose to do this. Since it has no reason to make it clear that a de minimis analysis can or should be separate from a fair use analysis, it doesn't bother. It's just unfortunate, since it would be nice to have another ruling that makes it clear that de minimis use is more than just a defense, and goes well beyond the limitations of fair use.

from the for-the-weekend dept

Well, might as well leave some folks for the weekend with some more bad news for Prenda as covered by Joe Mullin at Ars Technica. Yesterday there was another hearing in the case in Northern California, in the case where Judge Edward Chen appears to be a few steps behind Judge Otis Wright in understanding what Prenda is up to, but is catching up fast. This is the Navasca case, and Paul Duffy is so busy dealing with the collapse (and potential further problems) with Prenda that he apparently forgot the hearing was on at all. When the court reached him by phone, he was apparently confused, saying he thought the hearing had been cancelled. But the key point was that the Judge clearly is realizing that Prenda/Duffy are making claims that don't make much sense.

"Frankly I don't see why fees should not be awarded here, given the findings obtained in this court as well as other courts, including Judge Wright's," he said. "This case proceeded without proof of standing. There were also questions about identifying Mr. Navasca as an infringer without sufficient investigation. Other assertions, like improper spoliation, were never proven or supported. Then there's the whole question of motivation. There's a serious question raised about the whole business model here... [about whether] this is a business model to generate income through coerced settlements. If there's a case that warrants fee shifting, this certainly seems to be one of them."

Duffy tried to talk his way out of all of this, insisting (yet again) that Navasca "engaged in spoliation of evidence" -- a claim that's been tried by Team Prenda multiple times and failed -- in large part because it's silly. Navasca had a registry cleaner, CCleaner, installed on his computer, since well before the whole Prenda thing, and the app serves to keep a computer running efficiently and keep it from getting bogged down. Beyond having the app, there's no evidence that it was used to delete any form of evidence. The court has already rejected it, but Duffy couldn't let it go. But that's a pretty weak thread to hang from.

When asked about a variety of other things, Duffy did the usual "deny, deny, deny" move. In particular, Chen pointed out the whole lack of standing given the likelihood of Alan Cooper's signature being forged:

"Here AF [Holdings] didn't even prove standing," said Chen. The judge was referring to the disputed copyright assignment at the root of the case. It was signed by Alan Cooper, a former property caretaker for John Steele, the man pointed to as a key Prenda player. Cooper later denied having signed the papers.

"That's very much in dispute," said Duffy. "It's a 'he said, he said' about the individual who signed AF Holdings' [assignment]. The individual did not challenge the signature until Mr. Steele ejected him from his property, then all of a sudden repudiated his signature. There is a factual issue about whether the person who signed it actually signed it. We believe he did."

"I've not seen a case yet where AF Holdings has been able to prove to any court's satisfaction that this was not a case of either identity theft or forgery or something of that nature," said Chen. "I know you dispute this on behalf of your client. Is there a case where you have prevailed on this issue?"

"There's not a case where we have not prevailed," insisted Duffy,

When in doubt, go for the double negatives, I guess... Anyway, there's a lot more at that link. Duffy also tried to attack the credibility of Delvan Neville, the computer expert who presented incredibly compelling testimony that John Steele or someone closely associated with him was uploading the files Prenda was suing over themselves. As the judge pointed out, however, Duffy failed to actually file anything in any case that factually disputes Neville's statements. All he did was whine about Neville as a person and his credentials. The judge appears to find the lack of any such factual filings noteworthy.

"You take on his declaration... you argue about it. You say his opinions are worthless, et cetera, et cetera, purely conjectural, they don't make logical or economic sense. [But] I don't see any factual matter submitted. You had a full two weeks to respond.

We eagerly await Judge Chen's ruling.

Of course, there was also another Prenda hearing today down in Arizona, where Judge G. Murray Snow has also been expressing quite a bit of skepticism. There, Prenda red shirt Steve Goodhue filed "answers" to some of the questions Snow asked, which we've embedded below, but as of this writing no other details of the hearing have come about. I'm sure we'll find something out in the next week or so...

Meanwhile, back in St. Clair County, Illinois, where Prenda had focused a bunch of their state court actions, Charter Communications is now asking the judge to award it $5,000 from Team Prenda to pay for the costs of having to deal with Prenda's invalid subpoenas in one of the LW Systems (another shell) cases.

Charter attorney Robert Sprague of Belleville wrote in a motion July 11 that the company has asked for reimbursement from plaintiff attorney Paul Duffy of Chicago after Gleeson ruled June 6 that the subpoena was invalid, but that its requests have been ignored.

Sprague’s motion also claims that Duffy has not provided notice that customer information Charter inadvertently provided due to the invalid Jan. 31 subpoena has been destroyed.

“Charter customer information, including name and address information, is ordinarily confidential and subject to the protection under the Cable Act,” the motion states. “Customer information cannot be produced absent a valid court order requiring Charter to provide it.

It may be slow, but it seems like the world may finally start to be closing in on Prenda...

from the urls-we-dig-up dept

There are all kinds of kitchen gadgets that promise to save time while cooking meals. The microwave oven is probably the best example of technology making our meals significantly faster to prepare, but there are plenty of other cooking methods that are catching on in more and more kitchens (induction cooking, slow cookers, etc). Here are just a few more examples that might clutter your countertops.

trademark doctrines that have no rigorous definition or scientific support, like the initial interest confusion doctrine

technologically unsavvy judges that guess about how consumers use the Internet when those assumptions have been proven false in the literature

appellate courts that eviscerate a legal doctrine without expressly saying the doctrine is dead, leaving the legal doctrine as a zombie to plague the courts for many years

(Why yes, I did wake up on the wrong side of the bed this morning).

With this list in mind, you can see why I hate the 1-800 Contacts v. Lens.com lawsuit. 1-800 Contact has spent enormous amounts on legal fees—at least $650k as of 2010--pursuing Lens.com for competitive keyword ads that had generated $20 in profit for Lens.com (no, that's not a typo) and, at maximum, a few tens of thousands of dollars in revenue for Lens.com affiliates. All of this litigation is predicated on the initial interest confusion doctrine, an overly amorphous doctrine that no one can define or find any scientific support for, and which has been has been a loser in court for many years. To top it off, 1-800 Contacts had hypocritically engaged in competitive keyword advertising itself. Glass house and stones, etc.

1-800 Contacts sued Lens.com in 2007. In 2010, the district court destroyed 1-800 Contacts' arguments, handing Lens.com a complete win. On appeal, the Tenth Circuit upholds most of the lower court's ruling.

Is Buying Competitive Keyword Advertising Trademark Infringement?

1-800 Contacts argued that Lens.com created initial interest confusion by buying 1-800 Contacts' trademarks. The Tenth Circuit adopted one of the nation's most favorable definitions of initial interest confusion in its horrible 2006 case Australian Gold v. Hatfield. That case said initial interest confusion “results when a consumer seeks a particular trademark holder’s product and instead is lured to the product of a competitor by the competitor’s use of the same or a similar mark.” If this is just a restatement of bait-and-switch law, fine, but it’s generally believed the Tenth Circuit standard covered more than bait-and-switch. Bait-and-switch requires an initial falsity to bait the hook but the 10th Circuit's standard didn't mention falsity, and there’s no intrinsic falsity in a typical competitive keyword ad buy where the competitor's trademark is used to trigger ad copy.

By embracing the initial interest confusion in 2006, the Tenth Circuit was a late adopter to that party. Since then, the Ninth Circuit pivoted away from initial interest confusion doctrine in the Network Automation case (cited in this opinion), and other courts have cast doubts on the doctrine.

Unfortunately, the Tenth Circuit doesn't have the fortitude to knock out the doctrine entirely. Instead, it offers this broad legal interpretation:

initial-interest confusion would arise as follows: a consumer enters a query for “1-800 Contacts” on Google; sees a screen with an ad for Lens.com that is generated because of Lens.com’s purchase of one of the nine Challenged Keywords; becomes confused about whether Lens.com is the same source as, or is affiliated with, 1-800; and therefore clicks on the Lens.com ad to view the site. Lens.com has exploited its use of 1-800’s mark to lure the confused consumer to its website.

Normally I would strenuously object to this standard, but the Tenth Circuit then did a tricky sleight of hand with its evidentiary standards. Typically, trademark law measures consumer confusion through consumer surveys asking for their confusion about product source. Cases have usually held that 20%+ consumer confusion in those surveys is probative of confusion while <10% consumer confusion is probative of no legally actionable confusion.

Here, the court says that clickthrough rate (CTR) is a proxy for a consumer confusion survey--and the 10%/20% presumptions apparently apply. What this means in practice is that if the ad doesn't get well over a 10% clickthrough rate, then the low clickthrough rate will be probative of an absence of consumer confusion. But NO ad EVER gets 10%+ clickthrough rate (and certainly nowhere close to the 20% rate that would be decisively plaintiff-favorable); it’s big news when an ad clears 3% CTR.

With respect to the ads without the 1-800 Contacts trademark in the ad copy, Lens.com got a 1.5% CTR and its affiliates got less than 1% CTR (0.6-0.7%). Because the CTR was dramatically below the 10% threshold that's probative of a lack of consumer confusion, there was no actionable initial interest confusion either by Lens.com or its affiliates.

So this evidentiary standard should be dispositive in other initial interest confusion cases. If other courts follow the same logic, no competitive keyword ad could ever possibly create initial interest confusion because even the best performing ad’s CTR will be below the legally recognized threshold of consumer confusion.

Naturally, if plaintiffs can find other evidence to support initial interest confusion, I don't think this ruling precludes those arguments. But since no one knows what initial interest confusion is, and defendants can always introduce their single-digit CTR, I think we're done with the argument that keyword ads create initial interest confusion, at least in the Tenth Circuit.

Unfortunately, because the Tenth Circuit didn't expressly kill the doctrine outright, it's going to keep appearing in plaintiff arguments for many years hence. That means parties will waste a lot more money in litigation because the Tenth Circuit couldn't just say what it meant. SIGH.

In addition to grousing about the zombie-fication of the initial interest confusion, I have to kvetch about this passage from the opinion (emphasis added):

even if consumers in general may not much care what retailer supplies their contact lenses, the consumers relevant to this suit are looking for a particular retailer. Presumably they have narrowed their search because they have already selected 1-800 as the preferred retailer and are searching for its website or perhaps commentary on its performance. Given the purpose of the search, the shoppers will be attentive to click on those results that will connect them with sites relating to 1-800. In addition, once the consumers see the results page, the substantial dissimilarity between “1-800 Contacts” and “Lens.com” (or its other websites) can be expected to greatly reduce the chance that the consumers will think that the parties are related enterprises; the similarity of the search term and 1-800’s mark is of minor relevance.

Perhaps in the abstract, one who searches for a particular business with a strong mark and sees an entry on the results page will naturally infer that the entry is for that business. But that inference is an unnatural one when the entry is clearly labeled as an advertisement and clearly identifies the source, which has a name quite different from the business being searched for.

Kudos to the Tenth Circuit for recognizing that ad copy educates consumers and helps searchers improve their search process. Big demerits, however, for assuming that a search for "1-800 Contacts" signals that the searchers are, in fact, looking for 1-800 Contacts (or even information about it). This is demonstrably false, as the Hyman/Franklyn study showed and as I explained in 2005. The Network Automation opinion made this identical error. Why are appellate judges so tempted to assume searcher intent from the search keyword?

Contributory Infringement for Affiliates' Ad Buys With the Trademark in the Ad Copy

Although the court's disposition of the initial interest confusion resolves the ads triggered by 1-800 Contact's trademarks that don't display the trademarks in the ad copy, there still remains the ads by Lens.com's affiliate which contained the trademark in the ad copy. In a discussion that goes on way too long, the court ultimately rejects Lens.com's vicarious trademark liability, an agency-based doctrine. This should have been an easy call because there's absolutely no way affiliates mediated through Commission Junction are Lens.com's agents. The court notes the possibility that Commission Junction was Lens.com's agent and the affiliates were sub-agents. Give me a break. Still, the court says that the affiliate displaying the trademark in the ad copy acted outside the scope of any agency. The court says:

The issue is not whether McCoy had authority to act on Lens.com’s behalf at all, but merely whether he had actual authority to publish an ad displaying a variation of 1-800’s mark in its text....McCoy never believed, reasonably or otherwise, that Lens.com authorized him to place the ads. Thus, the subjective component of actual authority was absent.

Nice save of a completely faulty premise.

Nevertheless, the appellate court reopens the contributory infringement issue. The court is bothered by the fact that Lens.com waited 3 months between when it got 1-800 Contacts' lawsuit and asked the Commission Junction affiliate (McCoy) to stop advertising with 1-800 Contacts' trademark in the ad copy. The court says:

if Lens.com could have stopped the use of ads using 1-800’s mark by simply requiring CJ to send an email blast to its affiliates forbidding such use, then Lens.com’s failure to proceed in that manner after learning of such ads could constitute contributory infringement.….When modern technology enables one to communicate easily and effectively with an infringer without knowing the infringer’s specific identity, there is no reason for a rigid line requiring knowledge of that identity, so long as the remedy does not interfere with lawful conduct.

This standard doesn't ensure a 1-800 Contacts jury win. It's not clear to me that Lens.com could have fixed the problem just by sending an email. Still, even if Lens.com loses this portion of the case, this is a small fraction of the overall conduct 1-800 Contacts was complaining about. I believe the damages exposure for the remaining ads in question is relatively small. It would be more rational for the parties to settle up rather than spend the money to take this question to the jury, but nothing about this litigation has been rational to date, so I'd be surprised if rationality suddenly made an appearance now.

In this case, it's been clear all along that 1-800 Contacts' wasn't suing because it wanted to protect its brand. Instead, its apparent motivation all along has been to shut down competitors, by draining them of cash if necessary. I'm sure both parties have spent well over $1M on this litigation--money that the incumbent (1-800 Contacts) can afford more easily than newer entrants (like Lens.com). Thus, it's devastating to Lens.com that both courts have denied its attorneys' fees. Given that 1-800 Contacts got a small victory on appeal, the fee denial is consistent with trademark law, but the consequence is that 1-800 Contacts can get away with lawfare for anti-competitive objectives.

And 1-800 Contact’s fear of competition has manifested itself in other ways, including similar suits against other competitors and repeated attempts to game its state legislature. Lens.com did bring an antitrust claim against 1-800 Contacts for this litigation; that case has been on hold awaiting this Tenth Circuit ruling. We'll have to see if Lens.com now can make any headway to hold 1-800 Contacts accountable for its legal choices.

from the well-isn't-that-great dept

As of this morning, the Feds didn't want to say if they'd asked the FISA court to renew the order allowing it to collect the data on every single phone call from Verizon (and likely every other major phone carrier, though it's unclear if the orders for those others also expired today). However, as more and more people raised the question, the office of the Director of National Intelligence apparently recognized that they couldn't avoid answering the question forever, and admitted what everyone already knew: yes, it had asked for a renewal of the order and yes (of course) the rubber stamp FISA court had rubber stamped its approval:

Consistent with his prior declassification decision and in light of the significant and continuing public interest in the telephony metadata collection program, the DNI has decided to declassify and disclose publicly that the Government filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the Court renewed that authority.

The Administration is undertaking a careful and thorough review of whether and to what extent additional information or documents pertaining to this program may be declassified, consistent with the protection of national security.

It may be undertaking that internal review, but one thing that it does not want is to have to defend the whole shebang in court. Because the DOJ has now filed its response to the ACLU's lawsuit over the very same program (one of many such lawsuits, but one of the most high profile ones). The DOJ is asking for the case to be thrown out, of course. There are a bunch of reasons suggested, including arguing that the ACLU doesn't have standing. That's quite an argument, because the leaked order makes it clear that all customers of Verizon business services have had their data collected, and the ACLU just happens to be a customer. However, the DOJ argues "nuh uh," saying it doesn't actually count until someone in the government looks at the data it collected, and the ACLU has no proof that the government actually looked at the data.

Plaintiffs cannot meet this essential requirement, even assuming their
metadata have been or will be collected, because it is no more than speculation that their metadata
have been or ever will be among the very small percentage of the records in the database
that are ever reviewed. They neither allege nor point to any basis on which to conclude that any
identifier of theirs is among the small number authorized for queries under the RAS standard.
See Complaint, IN 25-27. Indeed, the chances that their metadata will be used or reviewed in a
query are so speculative that they lack Article III standing to seek the injunctive relief requested
in their July 2 letter.

In other words, because the feds only look at a few records, they can collect them all. That's the theory they've been working under for a while, but that would require you to believe that there is no "search and seizure" of information that the government collects until it actually does something with that data. While the FISA court may agree with that, it's not at all clear that a real federal court -- or even the Supreme Court -- would do so too.

Next, the DOJ argues that since this data is collected under &sec;215 it's clearly legal, end of story. Furthermore, they claim that collecting all the data (all of it!) meets the standard of "relevant" to an investigation, as required by the statute -- though, as others have described, much of this requires a handy-dandy redefining of the word "relevant." Don't you just love the malleability of the English language?

The large volume of telephony metadata is relevant to FBI
investigations into specific foreign terrorist organizations because to identify potential terrorist
communications under this court-imposed query standard requires collecting and storing a large
volume and high percentage of information about unrelated communications, to ensure that the
much smaller subset of terrorist-related telephony metadata records are contained within the
dataset. These data allow the Government to make connections related to terrorist activities over
time and can assist counter-terrorism personnel to discover whether known or suspected terrorists
have been in contact with other persons who may be engaged in terrorist activities, including
persons and activities inside the United States. If not collected and held by the Government, the
metadata may not remain available for the period necessary for these national security purposes,
because it need not be retained for that period by telecommunications service providers. Moreover,
unless the data are aggregated, it may not be possible to identify telephony metadata records
that cross different telecommunications networks. In short, because the telephony metadata
must be available in bulk to allow the Government to identify the records of terrorist communications,
there are "reasonable grounds to believe" that the data are relevant to authorized
investigations to protect against international terrorism, as Section 215 requires, even though
most of the records in the database are not associated with terrorist activity.

Basically, "all your data belong to us" because some of it might be relevant to some investigation at some undefined point. If that's the rule, then the government can collect anything and everything.

The DOJ also pulls out the expected Smith v. Maryland "third party doctrine" claim to say that the collection of the data from phone companies is legal because there's no expectation of privacy in the metadata about your calls held by a third party. We've pointed out multiple times how that stretches the interpretation of that case, perhaps well past the breaking point.

Either way, combine these two stories, and what you get is that, yes, the feds are still collecting every bit of data on every call you make... and there's no legal way you can challenge it because you don't have standing and it's all legal -- but not so legal that we're comfortable with it being tested in court. Doesn't that seem wrong?

from the setting-it-up-as-a-fight dept

As Congress kicked off its latest effort towards comprehensive copyright reform, I noted some talking points that raised a really big concern: many in Congress appeared to suggest that copyright reform was a fight between "content creators" and "technology companies" and that any eventual result would be a balance between what those two sides were squabbling for. This is very concerning for a variety of reasons. First off, neither of those groups should be the primary concern of lawmakers. The Constitutional mandate for Congress when it comes to copyright is to "promote the progress of science" (the useful arts stuff is about patents...). The key beneficiaries are to be the public.

So, the first concern, obviously, is that if the focus is on "content creators" on one side and "the tech industry" on the other, the public is not represented. That's a really bad idea. The second problem with setting it up as a battle between those two sides is that it suggests that what's good for one side is bad for the other, and this is a push and pull whereby when one side wins something, the other loses, and the "ideal" result is one where both have to compromise. Thus, you get talk about how copyright law needs to "balance" the interests of "both sides." Again, this ignores that there are a lot more than "two" sides here, but more importantly it ignores the idea that this is not a zero sum game.

The history of the tech and content industries shows that -- while they often squabble about things -- success goes hand in hand. Each and every major innovation from the tech world has resulted in greater opportunity for content creators. It's getting old to say this over and over and over again, but a mere four years after Jack Valenti told Congress that the VCR would be "the Boston Strangler" to the movie industry, home video sales for Hollywood were bigger than box office sales. Technology isn't anti-content creator -- it opens up new and greater opportunities. The focus shouldn't be on figuring out who has to "give up" what for "balance" but to seek out a scenario that is more likely to increase the opportunity for everyone (whether or not everyone grasps the opportunity may be a different story).

Thus, the key focus should be on what kinds of things should be in any copyright reform proposal that will "promote the progress" by building up those opportunities for everyone -- increasing innovation, not locking it down. That means bringing together everyone to figure out how they can help each other and the public -- not dividing them up and putting them on certain "teams."

But... this is Congress. And that's not how Congress works.

Instead, we're getting two separate hearings, one about how awesome copyright is, and another about how awesome technology is. As if those two things are in conflict.

Congress needs a fight between "this side" and "that side," preferably with each side involving giant multinational companies with giant lobbying budgets. Because, when you have a fight like that, both sides ramp up their donations to Congress to make sure "their side" is heard. Congress loves to set up fights between two big wealthy industries, because that just means more money for them. This is also why this won't be resolved any time soon (the longer you drag it out, the more money pours in).

So, it should come as no surprise at all that the next two hearings that the "Intellectual Subcommittee" have called are designed not to move the ball forward on real copyright reform, but rather to set up the "two sides" in the war. First up, next week, there will be a hearing on "Innovation in America: The Role of Copyrights." The following week? Same thing, but "the role of technology" (official title hasn't been released yet, as far as I can tell, but I've seen a few variations floating around, that basically just involve substituting "technology" for "copyrights") -- as if technology is inherently "anti-copyright."

The end result will be lots of home team cheering from people who solidly identify with one side or the other, coupled with ragging on "the other side." But there will be little or nothing to actually look at how those two "sides," along with many others, can come together to best serve the public benefit in terms of furthering the incentives to have important cultural and intellectual works created, experienced and shared.

from the uh-oh dept

Right. Remember last week when the DOJ said that it was going to be a lot more careful about spying on journalists, or using them as a way to find their sources concerning government whistleblowing (or, in the DOJ's mind "evil leakers who are aiding the enemy")? Yeah, so a bit awkward on the timing here, as in the DOJ's fight against James Risen (the NY Times reporter that the DOJ has been trying to force to reveal his sources concerning earlier NSA leaks), an appeals court has now said that Risen can be compelled to testify and reveal his sources.

The two judges (out of a three judge panel) who felt this way seriously twisted previous precedents concerning whether or not someone could be compelled to testify if you "witness" a crime. But the point of the laws there are basically if you see someone dealing drugs, you can be compelled to testify about it. With a reporter talking to a source, where that source is blowing the whistle on the government, then yes, the whistleblower may be technically "breaking the law" in providing info to a journalist, but it's an entirely different situation than say a journalist reporting on drug dealers (the precedent case that the court relied on). But, the court ruled otherwise.

There is no First Amendment testimonial privilege, absolute
or qualified, that protects a reporter from being compelled to
testify by the prosecution or the defense in criminal
proceedings about criminal conduct that the reporter personally
witnessed or participated in, absent a showing of bad faith,
harassment, or other such non-legitimate motive, even though the
reporter promised confidentiality to his source.

It is difficult to overstate the chilling impact this particular ruling will have on investigative journalism, especially when it comes to reporting on government abuse and corruption. Even if a journalist promises confidentiality and completely means it, this ruling means the government can just drag that journalist to court and force him or her to reveal his or her sources. That's going to completely freak out whistleblowers. While the court disagrees, I have a hard time seeing how this does not, fundamentally, violate the First Amendment's protections for press freedom.

Given that, I agree with Judge Gregory, who wrote a strong dissent.

Today we consider the importance of a free press in
ensuring the informed public debate critical to citizens’
oversight of their democratically elected representatives.
Undoubtedly, the revelation of some government secrets is too
damaging to our country’s national security to warrant
protection by evidentiary privilege. Yet the trial by press of
secret government actions can expose misguided policies, poor
planning, and worse. More importantly, a free and vigorous
press is an indispensable part of a system of democratic
government. Our country’s Founders established the First
Amendment’s guarantee of a free press as a recognition that a
government unaccountable to public discourse renders that
essential element of democracy – the vote – meaningless. The
majority reads narrowly the law governing the protection of a
reporter from revealing his sources, a decision that is, in my
view, contrary to the will and wisdom of our Founders.

The dissent is really worth reading, going into great detail on how this ruling appears to contradict previous rulings protecting the right of journalists to keep sources confidential.

In the past, Risen himself has said that he will appeal such a ruling and, further, that he would go to jail before revealing his sources. Either way, yet again, we see the Obama administration's all-too-aggressive war against whistleblowers and the impact it has. Various national security reporters have already been talking about how sources have been clamming up lately, and this is only going to lead to more of that -- and much less oversight and reporting on government fraud, abuse and corruption.

[S]nowden... reportedly passed encrypted copies of his cache to a number of third parties who have a non-journalistic mission: If Snowden should suffer a mysterious, fatal accident, these parties will find themselves in possession of the decryption key, and they can publish the documents to the world.

Obviously, Snowden has set this up to prevent the US from deciding to simply take him out, rather than risk any more leaks. This conceivably shifts priorities for the US, which now must take care to ensure Snowden remains unharmed. (It's not explicitly stated whether an arrest or successful extradition to the US will trigger the "switch.") Notably, Snowden doesn't actually have to die to set things in motion.

"It's not just a matter of, if he dies, things get released, it's more nuanced than that," he said. "It's really just a way to protect himself against extremely rogue behavior on the part of the United States, by which I mean violent actions toward him, designed to end his life, and it's just a way to ensure that nobody feels incentivized to do that."

I'm not sure he's thought this through, though. I would be more worried that someone would kill me in order to get the documents released than I would be that someone would kill me to prevent the documents from being released. Any real-world situation involves multiple adversaries, and it's important to keep all of them in mind when designing a security system.

This could make Snowden a target for people whose motivations run from the anti-American (exposed documents will hurt the US) to those who view chaos as its own end (exposed documents will wreak further mayhem in governments worldwide). This sort of action is probably more limited to individual actors rather than agents of unhappy/rival states.

If someone did manage to take him out, all eyes would turn to the US government. Whether the government did or didn't do it doesn't matter. It will be assumed it was ordered by the US. And whether or not the US government was behind it, it will issue a denial. This denial, of course, won't be believed because at this point, the government has the credibility of a heroin addict.

If the government has taken any of the above into consideration, it's back to having to ensure Snowden remains unharmed and safe, something made even more difficult by Snowden inadvertently painting a target on his own back.

from the when-will-this-end? dept

We've written about the various and never-ending copyright lawsuits filed by Perfect 10 more than a few times. The company -- which claims to be in the porn magazine business -- seems to focus much more on suing as many internet companies as possible. Especially search engines. It loves to sue and blame search engines. Of course, its record in court is dismal. The company almost always loses and loses big. In some ways, Perfect 10 is actually incredibly useful: it has helped set a number of important precedents against over-aggressive copyright enforcement that have come in handy in other cases. The company has filed dozens of lawsuits, and the fact that it loses so many of them doesn't appear to faze the company. In fact, in one countersuit against Perfect 10, a very strong argument is made that the company is a type of copyright troll, whose business isn't in producing porn, but in suing companies.

One of its latest lawsuits was against Yandex, the most popular search engine in Russia. Yandex is technically a Dutch company, but it has an American subsidiary, Yandex Inc., which does some development for Yandex.ru, the flagship Russian search engine. So it was this American presence that Perfect 10 sued, coming up with its usual twisted list of rationales for why this search engine, mostly based and used in Russia, should somehow be liable for the fact that its users can find images that Perfect 10 holds the copyright on hosted elsewhere. Once again, the case has gone badly for Perfect 10, with the court ruling for summary judgment on a variety of issues in favor of Yandex.

The court not only says that Perfect 10's claims of direct infringement are completely unsupported, but also notes that the company, ridiculously, pointed to one of its other cases, against Amazon, to support this claim. Except, the judge actually read that ruling, and pointed out that it doesn't say what Perfect 10 appears to think it says:

According to Perfect 10, when its images are hosted on servers located in Russia, Yandex violates Perfect 10’s “exclusive display right”
because users in the United States could download them. Perfect 10 supplies declarations
establishing that a United States user could download Perfect 10 images from a Yandex server in
Russia, but no evidence of actual downloads in the United States.

This theory of liability is rejected. Although Perfect 10 cites Amazon in support of its
argument, nowhere in that decision did our court of appeals endorse the idea that display of a
copyrighted image anywhere in the world creates direct copyright liability in the United States
merely because the image could be downloaded from a server abroad by someone in the United
States. Such a principle would destroy the concept of territoriality inherent in the Copyright Act
for works on the internet.

This kind of thing is repeated throughout. Perfect 10 makes some outlandish claim about how Yandex must be liable, and the court shoots it down for lack of any evidence or precedent to support Perfect 10's claim.

It is not necessary to address the validity of this theory merits. It fails for lack of proof.

Ouch.

While Perfect 10's infamous lawsuit against Google over the thumbnail images in Google Images failed miserably, and was yet another victory for fair use and common sense, Perfect 10 tries again here. It claims that that case doesn't apply to image thumbnails in Yandex's search because Yandex provides direct links to the images, rather than the pages, unlike Google (though, I believe Google recently switched to something like this). The court is unimpressed, noting that the thumbnails are still fair use.

It is true that this integrated composite screen left the impression that the nude model
image emanated from Yandex, but this objection fails for three reasons. First, our court of
appeals expressly held that in-line linking to a full-size image does not constitute direct
infringement. Id. at 1159–60. Without a direct infringement of the full-size image, the fair use
defense does come into play — at least as to that full-size image. Second, whether a browser
window shows only the thumbnail and the full-size image — instead of the full-size image along
with part of the surrounding web page — does not affect whether the use of the thumbnail has
been transformed. Third, even if yandex.com’s use of the thumbnail were broadly described as
an ‘in-line link connected to a full-size image,’ that use remains highly transformative.

In other words, it's not the link that makes the difference here, but rather the purpose of such an image search engine, which is entirely different than a magazine. In typical Perfect 10 fashion, even when it presents evidence, that evidence is nonsensical and doesn't further its claims, which the court makes clear.

Perfect 10 is arguing that Yandex causes it market
harm because Yandex provides a search service that links to third-party infringers. This
argument is not substantiated by competent evidence. Perfect 10’s putative support for this
contention consists of screen shots from third-party websites showing that links on those
websites leading to Perfect 10 images had been viewed approximately 3.8 million times as of
December 2012 (which was within the nine-month period that yandex.com servers were located
in the United States). Perfect 10 does not, however, provide evidence that any of those views
were the result of yandex.com users clicking on thumbnails stored on yandex.com servers in the
United States during that nine-month period. The simple fact that the thumbnail links were
stored in yandex.com’s index and accessible on the internet does not compel a finding that those
links were actually viewed or used.

Again and again, we see Perfect 10 make ridiculous assertions and the judges have to smack them down for it:

Pointing to the
alleged loss of its cell phone download business in the ensuing years, Perfect 10 cries foul.
Perfect 10 reasons that the market for reduced-size images has dried up since 2007, and Yandex
has began providing a thumbnail search service since 2007; ergo, Perfect 10 has been harmed by
Yandex. This simple correlation, without more, does not constitute sufficient evidence that
Yandex’s use of 40,000 thumbnail images between June 2012 and March 2013 affected Perfect
10’s market. Significantly, in a prior litigation against Google, Perfect 10’s president stated in a
sworn declaration that Perfect 10’s cell phone download business “effectively ended in 2006.”

Later, it attempts to show "proof" by having its own staff download images, and the court says that's not proof of direct infringement, because you can't infringe your own copyrights:

Perfect 10 submitted declarations from a private investigator, a web developer, and a
graphic designer (Dkt. Nos. 167-28–30). In each one, the declarant states they were asked by
Perfect 10 to use various Yandex services to download Perfect 10 images to computers located
within the United States. Each declarant confirms that this is “possible” and then explains the
process by which they each accomplished the task. These declarations do not change any of the
conclusions herein. Perfect 10’s own downloads (and downloads by its agents) conducted as
part of its investigation do not constitute direct infringements because Perfect 10 cannot infringe
its own copyrights. Nor do any of the declarations rise to the level of expert testimony showing
that any particular quantity of such downloads have in fact occurred. This order agrees that it is
possible for someone in the United States to download infringing copies of Perfect 10 images
using Yandex’s search engine. The summary judgment record does not establish, however, that
any such downloading has actually occurred.

Every time we see one of these cases, it makes you wonder about the lawyers that Perfect 10 employs, as they don't seem to be very convincing. However, once again, we get another good ruling that favors fair use for search, secondary liability protections, and another smackdown of Perfect 10. Somehow, I doubt this will be the last time.

from the say-what-now? dept

Another day, another crazy claim from the DOJ. The latest concerns a legal challenge to the administration's ability to use drone strikes against US citizens abroad. The US has been arguing that this issue cannot be tried in court because it's outside the court's jurisdiction and because of national security reasons. Most ridiculously of all, the DOJ has argued that there are Constitutional rights that cannot be challenged in court:

Deputy Assistant Attorney General Brian Hauck argued there was a difference between having a constitutional right—which he said could be protected by the executive and legislative branches—and being able to make constitutional claims in court.

Think about that statement for a second. It's not just legally wrong, it's horrifying. Thankfully, Judge Rosemary Collyer found this claim equally bizarre.

"I'm really troubled…that you cannot explain to me where the end of it is," Collyer said. "That, yes, they have constitutional rights but there is no remedy for those constitutional rights."

In case you're wondering, Hauck apparently is relying on the Political Question Doctrine, which tends to be applied very narrowly and is only supposed to mean that courts should not take on cases that present a "political" question rather than a "legal" question. But, a Constitutional issue over whether or not the US government has the right to kill a US citizen like that certainly seems like a legal question, not a political one.

Hauck further argued the executive and legislative branches could be trusted to protect the rights of citizens. In other words: "Hey, courts, don't worry about US drone strikes killing US citizens, Congress and the administration have this one covered." But, um, that's not how it works. We have three branches of government for a reason, and the checks and balances they provide is the key reason. Having an administration that is in charge of using the drone strikes, along with a very compliant Congress, as the only ones capable of determining if the use is appropriate seems to completely ignore the basic premise of the checks and balances of government, especially when it comes to the Constitutional rights of US citizens.

"The problem is, how far does your argument take you?" Collyer said, adding that she found it "a little disconcerting" that the government was arguing that there could be no court review of a decision by the executive and Congress to target American citizens abroad.

It's good to see the judge is concerned, but this case has a long, long way to go, and the administration is going to try as hard as possible to keep this issue out of court entirely.

Whether or not you agree with Warren or the CNBC hosts, I'd hope everyone could agree that using copyright to censor such a thing is wrong. While it's unclear if this was a mere ContentID match or a DMCA takedown, the fact that other similar clips remain on YouTube suggest that it was not an automated decision, but a deliberate one. Furthermore, as Upworthy has pointed out, many other Senators have CNBC clips on their own YouTube channels, which have not been pulled. Given those two things, it seems quite clear that NBC directly targeted Senator Warren's use of this clip (which was getting a lot of traffic -- over 700,000 views) for takedown.

CNBC's "response" that the clip "has been available to view in multiple locations on CNBC.com since its original posting" is equally misleading, because, as Gawker notes, CNBC has the full 10 minute interview, rather than the short clip that was highlighted on Warren's YouTube account.

If Senator Warren so chose, I think she has a exceptionally strong fair use claim to challenge the takedown. It was a short clip, clearly used for disseminating information to the public and educating the public on a topic of great public interest, wasn't being used commercially and a whole host of other reasons. And, NBC, who regularly relies on fair use claims to broadcast clips from other sources, would have a difficult time fighting back. But, once again, we see the pernicious effects of how copyright is being used, repeatedly, by copyright holders not for legitimate, copyright-related reasons, but rather directly as a tool for censorship.

Oh, and of course, NBC's attempt to censor a Senator getting the better of one of its talking heads, has only meant that the video is popping up in plenty of other places and getting much more attention. There's a phrase for that, I think...

from the because-it-is dept

The very first of the Ed Snowden leaks was a FISA court order to Verizon, ordering it to hand over information on every single phone call, on an "ongoing, daily basis." That order expired on July 19, 2013. Today. It quickly came out that the FISA court has been approving nearly identical orders every 90 days for about seven years, though the defenders of the program like to use that "it's only for 90 days" excuse to suggest there's "oversight." Still, given that the existence of this effort is now actually public, plenty of people are wondering whether or not the FISA court issued the expected followup. Of course, no one who knows wants to say anything.

The Obama administration is refusing to say whether it will seek to renew a court order that permits the National Security Agency's bulk collection of phone records on millions of Verizon customers when it expires at the end of this week.

Officials declined to discuss what action they intend to take about the order at the center of the current surveillance scandal, which formally expires at 5pm Friday.

That's because it's almost certain that it's already been renewed and rubber stamped by the FISA court. The White House told Guardian reporters to ask the Justice Department. Guess where that went:

The White House referred queries to the Justice Department. "We have no announcement at this time," said Justice Department spokesman Brian Fallon. The NSA and office of the Director of National Intelligence did not respond to questions.

A spokesman for the Fisa court, Sheldon Snook, said the court "respectfully declines to comment".

In other words: please, please, go away and can we hope this story dies down by the time the next 90-day window rolls around?

Thankfully, some members of Congress have told the White House not to seek a renewal, but it seems unlikely that the White House will do anything, other than keep on sucking up all that data.

from the well-look-at-that dept

We've discussed before that, while the major tech companies have been pretty vocal about the NSA surveillance situation, the major telcos have been almost universally silent. In fact, it has since come out that AT&T and Verizon were more or less shoving each other aside to "volunteer" to hand your info over to the government. The further revelations (including some past leaks) about how AT&T and Verizon have more or less given the NSA on-premise access to all data going through their pipes suggest a level of cooperation with government that is stunning and dangerous -- especially given the market dominance held by the telcos at the internet backbone level.

We were just talking about how various tech companies have strongly asked the government for permission to be a lot more transparent, but it seems equally notable that, according to a report in the NY Times, the telcos were approached about joining on the letter and declined to participate:

While prominent Internet companies are pushing for fuller disclosure, some of the nation's largest telecommunications firms were not willing to sign on, according to several people involved in the coalition.

Gee, I wonder why? In fact, the only company on the list whose main business is internet access is the small ISP Sonic.net, who has built up its (wonderful) reputation as one of the only ISPs out there that really tries to align its business with its customers' best interests.

Meanwhile, if you're wondering what the big telcos are doing instead of pushing for this kind of necessary transparency? Apparently it's hiring incredibly powerful lobbyists, including the recently-departed FTC chairperson (and former MPAA lobbyist) Jon Leibowitz, along with former Congressional Rep. (another Hollywood favorite) Mary Bono Mack, to "lobby Congress on digital privacy policies." You think they'll be advocating for better privacy protections? Or... better protection for themselves against the privacy concerns of the public. The group isn't saying, but it's not hard to take a guess.

The level of transparency demanded by the tech firms could (and should) go much further than what they're currently asking. But at least they're asking for transparency, and there's at least some evidence that some of the companies -- mainly Twitter, Yahoo! and Google -- have fought back against Government requests. When it comes to the telcos, not only is there little evidence of them pushing back against government overreach, it appears that the telcos actively volunteered to make such overreaches easier. That might explain why they're not so keen on "transparency." Having to reveal numbers like "number of users impacted: all of them" probably won't go over well. Somehow, I doubt their massive new "digital privacy" lobbying effort will seek to improve this situation.

from the omfg-wtf-tsa dept

Update: The TSA tells us that this claim below was a false report. Instead, they say each airport is responsible for their own security plan, and this was just how this airport conducted some of its security. That said, they also admit that the plans are "approved by the TSA." Still, it's entirely possible that it was wrong to flat out pin this on the TSA -- though it does seem legit to claim that this came about due to the culture of paranoia and suspicion that the TSA seems to encourage.

Laurie Iacuzza walked to her waiting car at the Greater Rochester International Airport after returning from a trip and that's when she found it -- a notice saying her car was inspected after she left for her flight. She said, "I was furious. They never mentioned it to me when I booked the valet or when I picked up the car or when I dropped it off."

Iacuzza's car was inspected by valet attendants on orders from the TSA.

Take note of that, America. Your safety can only be guaranteed by a search of valet-parked vehicles, but not by a trained agent. Instead, your valet will do a brief search of your vehicle to ensure there's nothing inside the cabin, trunk or under the hood that looks like a bomb. (Like, for instance, a bundle of wires and some other stuff with a post-it attached saying, "NOT A BOMB.")

The report stated that the inspection involves looking into the trunk and engine and a "scan" of the inside of the car, which does not include opening the glove compartment or the console.

Granted, the cabin of the vehicle isn't really "private," but digging around in someone's trunk usually requires a warrant or reasonable suspicion. And I don't think I can stress this enough, but YOUR VALET is performing this warrantless, suspicionless search.

But is that the extent of vehicles being searched at airports?

[W]hy only valet parked cars? That's what News10NBC wanted to ask the TSA director about. We reached him by phone.

Berkeley Brean asked, "Are the cars in the short term lots and long term lots getting searched as well?"

John McCaffery, TSA, said, "No, those vehicles that are in the garage, short term long term parking, even if they carry pretty large amounts of explosives, they would not cause damage to the front of the airport. But for those who use the valet, the car could be there for a half hour or an hour so there is a vulnerability."

Well, that almost seems smart, except that cars waiting for a free valet/human bomb detector aren't the only vehicles lingering in front of airports, as J.D. Tucille at Reason points out.

If the TSA is truly worried about car bombs at the curb, all of those private vehicles and taxis making drop-offs and pickups would seem to be of equal concern to cars left with a valet.

His guess is that the TSA does it because it has "nominal consent," thanks to a sign posted at the valet window that announces valet-parked vehicles will be searched per TSA orders. Except that Iacuzza claims no sign was posted when she dropped off her vehicle and the valet agency refused to state when the sign was actually posted.

I think it goes farther than nominal consent. Whether or not it makes sense to search vehicles parked for more than X minutes in front of the airport (it doesn't -- at least if you're not searching non-valet-parked vehicles) is beside the point. Vehicles left for valets to park present both access and opportunity, two aspects our nation's security agencies never let go to waste.

The valet is going to be inside the vehicle to park it. That's a given. No expectation of privacy in terms of the interior of the vehicle. The attendant can also pop the hood once inside. Accessing the trunk may take a key or may have an interior release, but either way, the attendant has everything he or she needs to do a quick and dirty "search." A car waiting for a valet is a Christmas present for the TSA, which clearly has a jones to search as many forms of transport as possible.

And if you don't consent? Well, I suppose you're stuck parking your own car bomb at short-term or long-term parking where it can detonate in peace.

But don't worry, it could be worse. The DHS has noted that in cases of heightened security alerts, the TSA can randomly search any vehicle it wants to. Pushing this job to valets just sounds like the TSA would rather avoid more confrontations with pissed off travelers. Beyond that though, it just seems incredibly shitty to put untrained valets in potentially dangerous situations. You know, unless no one, not even the TSA, really believes anyone's leaving cars loaded with explosives at valet parking.

"Each airport authority, along with their state and local law enforcement partners, is responsible for securing airport property, including the outer perimeter."

Sounds like cans being kicked down the road. Tucille adds:

Suffice it to say, as you can tell from the official statement emphasizing airport authorities and local agencies, TSA doesn't want to take credit for the car searches at Rochester's airport. Also, I think it's a safe bet that Laurie Iacuzza, and anybody else who left cars with valets at the airport before this story broke, was very likely not properly informed that their vehicles would be searched.

Looks like some improper searches have been occurring at the Greater Rochester International Airport. And if the TSA didn't give the go-ahead for these search-and-park maneuvers, whoever whipped up the sign and the notice left in Iacuzza's vehicle will need to do a bit of explaining.

from the perhaps-we-have-too-many dept

The video discusses the book Three Felonies a Day by Harvey Silvergate, which we've mentioned in the past. However, a point that was perhaps more stunning was mentioning how Rep. James Sensenbrenner asked the Congressional Research Service to list out the criminal offenses under federal law, and they refused, saying it would be too much work:

The task force staff asked the Congressional Research Service to update the calculation of criminal offenses in the federal code, which was last undertaken in 2008, said task force chairman Representative John Sensenbrenner (R-Wis.)

"CRS's initial response to our request was that they lack the manpower and resources to accomplish this task," Sensenbrenner said Friday. "I think this confirms the point that all of us have been making on this issue and demonstrates the breadth of overcriminalization."

There's clearly something very, very wrong about a criminal code where the governmental agency charged with doing basic research for Congress finds it too big a task to list out all of the crimes listed under federal law. At that point, you no longer have a "rule of law." You have a system of loopholes and gotchas, with enough tricks and traps that anyone can be made into a criminal if the authorities decide that's what they want to do. This isn't to suggest that law enforcement regularly goes after people with trumped up charges -- I don't think they do. However, it does happen sometimes. But, far more common, and equally worrisome, is how this allows law enforcement to pile on additional charges and potential punishment for people accused of relatively minor crimes.

from the disruptive-innovation dept

One of the most common results of disruptive technologies is that the legacy players scream to the heavens (or, rather, the politicians) about how dangerous the new technology is and how people will die if that new technology isn't crippled. One of the most ridiculous examples of this -- from over a century ago -- was with the introduction of automobiles. Some transportation competitors raised such a stink about how dangerous cars were, that a few governments passed so called red flag traffic laws, that required someone to walk in front of any car, waving a red flag to warn people of what was coming. One of the most famous, in the UK, included this:

... one of such persons, while any locomotive is in motion, shall precede such locomotive on foot by not less than sixty yards, and shall carry a red flag constantly displayed, and shall warn the riders and drivers of horses of the approach of such locomotives...

Of course, those who were once the disruptors often become the incumbents, so it should be little surprise that automakers are on the other side of things when it comes to the eventual roll out of Google's self-driving cars. The Wall Street Journal is reporting that politicians and automakers are pushing Google to cripple their self-driving cars while also delaying the roll out.

Google Inc. , under pressure to slow down development of driverless cars, may crimp the capabilities of the first auto products that it brings to market, people close to the company say. That may mean that cars using Google's software may not drive faster than 25 miles per hour and may feature a foam front end to limit the extent of damage caused in the event of a collision.

Yes, there are some irrational fears about self-driving cars. Undoubtedly, there will be some malfunctions and accidents. And a lot of legal issues are unsettled. However, crippling the cars to the point that they're almost useless seems rather silly. Regular, human-driven cars are notoriously unreliable and subject to accidents. It's quite likely that as more self-driving cars are on the road that accidents will decline massively, as the technology will actually make the roads much safer.

While the article highlights the potential legal concerns and "public perception" of self-driving cars as a reason to cripple the first round of those cars, there are also, not surprisingly, competing automakers and tech companies in the mix, with their fear that Google's willingness to keep innovating may leave them all far behind:

Auto makers and technology companies have made significant investments in the development of self-driving cars, although they favor a much more cautious, step-by-step approach than Google's leadership does. How the car research plays out will say a lot about how Google's innovative process will work as the company continues to mature and enter huge new markets such as transportation. It has run roughshod over the wireless phone industry for the last few years, quickly establishing the dominance of its Android operating system. But the auto industry has seen that story unfold, and doesn't want to be cast unwillingly in a sequel.

In other words, spreading FUD about self-driving cars means Google can't be as aggressive in pushing the envelope, and maybe we can hold back the tide for a few more profitable years of the old, more dangerous, kinds of cars.

from the sharing-of-knowledge dept

It's not all that uncommon to see government agencies try to refuse to release information that is subject to a Freedom of Information Act (FOIA) request -- but to have a non-governmental third party jump into a FOIA request to seek to block the info from being released? That's pretty damn rare. But it's happened -- and, amazingly, the third party is MIT, a school that is supposedly dedicated to advancing knowledge. Except, apparently, if that knowledge is going to make MIT look bad.

We recently noted that Judge Colleen Kollar-Kotelly had ordered Homeland Security to release the Secret Service file on Aaron Swartz that had been requested by Wired reporter/editor Kevin Poulsen. However, MIT has now stepped into the case trying to block the release of the information. The judge has consented to putting a stay on the initial order until MIT can file its motion.

MIT's concern -- as it was in a separate legal fight concerning releasing the evidence used against Aaron -- is apparently that the released documents will reveal which MIT employees helped with the investigation, and that could lead to unwarranted harassment. However, as Poulsen notes, the documents that have already been released have been redacting those names, so it's unlikely that these further releases would leave those same names unredacted.

The larger issue, however, is that an institute of higher learning, one which supposedly supports information sharing and knowledge transfer, is intervening in a FOIA case to actively support keeping information from the public. This is quite incredible, and a rather shameful move from the MIT administration, following a string of similarly shameful moves having to do with how it handled the Swartz situation from the very beginning. As Poulsen notes, the situation is incredibly rare:

I have never, in fifteen years of reporting, seen a non-governmental party argue for the right to interfere in a Freedom of Information Act release of government documents. My lawyer, David Sobel, has been litigating FOIA for decades, and he’s never encountered it either. It’s saddening to see an academic institution set this precedent.

MIT was one of the first universities to support open online courses. It has a long history of encouraging the open exchange and sharing of knowledge and information. It seems like quite a departure from its history and mission to suddenly focus on trying to increase the government's secrecy and blocking access to information.

Parliament's intelligence and security committee launched an investigation into allegations Britain's GCHQ surveillance agency circumvented British laws protecting the privacy of communications by accessing data from the U.S. program.

"From the evidence we have seen, we have concluded that this is unfounded," said the committee.

That's a relief. For a little while, it looked as though sweeping data collection might be something that ran afoul of laws protecting citizens' privacy or other limitations put in place to prevent domestic intelligence agencies from spying on their countrymen. You know, the sort of restrictions that separated us from our Cold War rivals and current totalitarian regimes.

On the bright side, the GCHQ at least has the decency to show up with a warrant. Classy.

A thorough investigation had shown the reports GCHQ compiled using U.S. intelligence were put together legally, it said. The agency possessed a warrant for interception signed by a government minister each time it asked for information from the United States, it added.

All interception warrants are valid for an initial period of three months. Upon renewal, warrants issued on serious crime grounds are valid for a further period of three months. Warrants renewed on national security/economic well-being grounds are valid for a further period of six months. Urgent authorisations are valid for five working days following the date of issue unless renewed by the Secretary of State.

Further, in each case where GCHQ sought information from the US, a warrant for interception, signed by a Minister, was already in place, in accordance with the legal safeguards contained in the Regulation of Investigatory Powers Act 2000.

The process appears to be: if you'd like to grab some data, please stop by our offices during business hours to pick up a pre-filled out warrant. But don't worry. It's all legal and buttressed by plenty of "safeguards," just the way it is over in the US.

The takeaway is simple: the laws governing these surveillance programs are terrible if this is what they permit. Perhaps there will be some major changes in the future. But all of this would have remained unchallenged without Snowden's leaks. This just shows that, within our two governments, those who had direct knowledge were perfectly content with what was allowed. Even worse, they allowed expansions and reinterpretations of these laws in order to enable and encourage additional surveillance of domestic citizens.